Case Report: (1828) 5 Murr 6

Key points: Creation of right of way – road alleged to be public but blocked by a gate – whether the bank of a navigable tidal river is a ‘public place’ – the distinction between tidal and non-tidal rivers.

The facts: Oswald sought a Declarator that a public right of way for carriages and horses existed along the south bank of the River Clyde from the south end of the old Gorbals Bridge to the south end of the new Broomielaw Bridge; at the latter point, Lawrie had placed a gate across the alleged right of way.

Decision: After hearing the evidence regarding use of the road for the prescriptive period, the Court granted Oswald the Declarator which he sought.

Comments: This was a straightforward type of case, but its importance lies in the Court’s observation which was, in effect, that the bank of a navigable and tidal river could be a point at which a highway may legally end. The Court, using the language of 1828, referred to ”the margin of a river”, rather than to ”the bank”, and it did not refer to the river as being navigable or tidal; however, in 1828 at the place in question, the Clyde was both navigable and tidal; the new Broomielaw Bridge and the alleged public road met on the river bank where there was considerable traffic. The case is therefore considered as authority that where there is sufficient evidence of public resort to a particular spot on the bank of a navigable tidal river, that spot may be a ‘public place’ at which a public right of way may end. Contrast this decision with the observations in Leith-Buchanan v Hogg, referring to a navigable but non-tidal river, i.e. the Leven in Dunbartonshire.